United States v. Dilade McCoy , 804 F.3d 349 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4745
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DILADE MCCOY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:14-cr-00044-REP-2)
Argued: September 17, 2015 Decided: October 15, 2015
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Gregory joined.
ARGUED: Gregory Bruce English, ENGLISH LAW FIRM, PLLC,
Alexandria, Virginia, for Appellant. Angela Mastandrea-Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Dana J. Boente, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
Dilade McCoy challenges as substantively unreasonable his
188-month sentence for conspiracy and possession with intent to
distribute cocaine. We affirm.
I.
In 2014, a federal grand jury indicted McCoy for conspiracy
to distribute and possess with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. § 846 (2012);
possession with intent to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. § 841(a), (b)(1)(B)(ii)
(2012); and possession of ammunition by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2012). At trial, his co-
defendant testified to buying cocaine from McCoy on three
occasions: an early summer 2013 sale of one kilogram, a late
summer 2013 sale of three kilograms that were returned for poor
quality, and a November 2013 sale of three kilograms. The jury
found McCoy guilty of the drug-related charges for an amount of
cocaine greater than 500 grams but less than 5 kilograms.
In the Presentence Investigation Report (PSR), the
probation officer counted all three sales and attributed seven
kilograms of cocaine to McCoy, above the range the jury found.
Pursuant to the U.S. Sentencing Guidelines Manual § 2D1.1(c)(4)
(U.S. Sentencing Comm’n 2013), the PSR pegged McCoy’s base
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offense level at 32. The PSR calculated McCoy’s criminal
history category as II, reflecting three points for a 2005
conviction for criminal possession of cocaine with intent to
distribute. The resulting advisory Guidelines range was 135 to
168 months’ imprisonment.
McCoy objected to the amount of cocaine attributed to him,
arguing that he should be held accountable only for the amount
of cocaine found by the jury, which would reduce his base
offense level to 30 and Guidelines range to 108 to 120 months.
He sought a term of imprisonment no greater than the statutory
mandatory minimum sentence of 120 months.
The Government moved for an upward departure, arguing that
McCoy’s criminal history category understated the seriousness of
his criminal past. While a juvenile, McCoy committed three
felonies, for which he was tried as an adult. He committed two
robberies in 1986 at age 15, was convicted of both and
imprisoned. In 1989, at age 17 and one year after his release
from prison, he committed another violent crime, pleading guilty
to assault with intent to cause serious injury with a weapon.
For that offense, he served eight years in prison. He was
discharged from parole in 2000 and arrested less than five years
later, resulting in the 2005 conviction for criminal possession
of cocaine. Because McCoy committed the robberies and assault
more than fifteen years before the present offenses, the PSR did
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not count them in determining his criminal history category
pursuant to Guidelines § 4A1.2(e)(3). To reflect the juvenile
convictions, the Government requested an increase to criminal
history category IV and a sentence of 192 months, which is
within the applicable 168-to-210 month Guidelines range. McCoy
objected to consideration of his juvenile convictions because of
their remoteness and his youth at the time of the offenses.
The district court rejected McCoy’s objection to the amount
of cocaine attributed to him. In response to the Government’s
motion for upward departure, the court observed that McCoy’s
criminal history was “quite serious” and that “the facts here
call for the application of [§] 4A1.3,” which governs upward
departures based on the inadequacy of a defendant’s criminal
history category. The court counted all three convictions,
resulting in an additional eight points, placing McCoy in
criminal history category V with a Guidelines range of 188 to
235 months’ imprisonment. The court sentenced McCoy to 188
months’ imprisonment, explaining that the departure was
“necessary to protect the public from the defendant, to promote
respect for the law, to deter the defendant, and to deter others
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similarly situated.” McCoy noted a timely appeal of this
sentence. 1
We review a sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). The same standard applies
whether the sentence is “inside, just outside, or significantly
outside the Guidelines range.” Id. However, a “major
departure” from the Guidelines range “should be supported by a
more significant justification than a minor one.” Id. at 50.
In reviewing a departure from the advisory Guidelines range, we
“defer to the trial court and can reverse a sentence only if it
is unreasonable, even if the sentence would not have been [our]
choice.” United States v. Evans, 526 F.3d 155, 160 (4th Cir.
2008) (emphasis omitted).
II.
McCoy makes no claim that his sentence is procedurally
unreasonable, but he poses several challenges to the substantive
reasonableness of his sentence. Each argument fails.
1 McCoy filed a pro se supplemental brief in which he also
challenges the sufficiency of the evidence. After thorough
review of these arguments, we find that they lack merit.
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A.
First, McCoy asserts that his sentence is substantively
unreasonable because the district court “improperly considered”
his stale juvenile convictions. Appellant’s Br. 15. He argues
that these crimes, which he committed between the time he was 15
to 17 years old, and which occurred approximately 25 years
before he committed the instant crimes, do not justify the
district court’s upward departure.
Section 4A1.3(a)(1) of the Guidelines authorizes an upward
departure when “reliable information indicates that the
defendant’s criminal history category substantially under-
represents the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes.”
U.S.S.G. § 4A1.3(a)(1); see United States v. Whorley, 550 F.3d
326, 341 (4th Cir. 2008) (noting that an under-representative
criminal history category is an “encouraged” basis for upward
departure). A court may base a Guidelines § 4A1.3 upward
departure on a defendant’s prior convictions, even if those
convictions are too old to be counted in the calculation of the
Guidelines range under Guidelines § 4A1.2(e). U.S.S.G.
§§ 4A1.2(e) cmt. n. 8, 4A1.3(a)(2)(A).
The district court found that McCoy’s criminal history
category under-represented his criminal history enough to
warrant an upward departure. The court recognized McCoy’s youth
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at the time he committed the robberies and the assault with
intent to cause serious injury with a weapon. The court also
recognized the remoteness of these crimes from his present
offenses. But given the seriousness of the juvenile crimes and
the fact that McCoy committed another crime -- criminal
possession of cocaine -- within five years of being released
from prison on the third juvenile charge (the assault), the
court found that counting the juvenile felonies in McCoy’s
criminal history better represented that “serious” history and
his likelihood of recidivism.
Relying heavily on our recent decision in United States v.
Howard, 773 F.3d 519 (4th Cir. 2014), McCoy maintains that the
district court abused its discretion in so reasoning. In
Howard, we held that the imposition of a life sentence, an
enormous departure from the 121-month top of the Guidelines
range, on the basis of juvenile, non-violent, stale convictions,
constituted an abuse of discretion. Howard, 773 F.3d at 528,
535-36. Howard is clearly distinguishable from the case at
hand. For here the court imposed a much more modest upward
departure (from 168 months to 188 months) on the basis of
violent juvenile crimes. We have found reasonable far greater
upward departures based on similar facts. See, e.g., United
States v. Myers, 589 F.3d 117 (4th Cir. 2009) (finding
reasonable an upward departure from 121 months to 360 months
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based on three stale convictions); United States v. Lawrence,
349 F.3d 724, 727 (4th Cir. 2003) (finding reasonable an upward
departure from 96 months to a total of 262 months based in part
on the defendant’s “extensive juvenile record”). The district
court here departed upward a number of months that “pale[s] in
comparison to” the upward departure in Howard, 773 F.3d at 530,
and did not abuse its discretion in considering McCoy’s violent
juvenile crimes in doing so.
B.
Second, McCoy argues that his sentence is substantively
unreasonable because the district court increased his criminal
history category to V, even though the Government only requested
an increase to category IV. He again seeks to analogize his
case to Howard, where we recognized that, although “no district
court is ever mandated to impose the sentence recommended by the
prosecution,” it was notable that the district court’s sentence
of life imprisonment was far longer than the 360-month sentence
advocated by the Government. 773 F.3d at 533-35. We pointed
out that the Government’s recommendation “can serve as an
important pillar” in achieving “the avoidance of unwarranted
sentencing disparities,” one of the principle goals of the
Sentencing Reform Act of 1984 and the Guidelines. Id. at 535.
We stand by those observations, but they do not assist
McCoy for, although the district court increased his criminal
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history category above the Government’s request, the sentence of
188 months was lower than the 192 months requested by the
Government. Furthermore, had the district court increased
McCoy’s criminal history category to IV, as requested by the
Government, a sentence of 188 months would still have fallen
within the resulting Guidelines range of 168 to 210 months.
Thus, this increase in the criminal history category does not
raise the issue of “unwarranted sentencing disparities”
identified in Howard.
C.
Third, McCoy maintains that his sentence overstates the
seriousness of his offense. He argues that the three-kilogram
order placed in November 2013 merely replaced the three-kilogram
order returned in the summer of 2013. McCoy concedes that all
seven kilograms “can properly be considered” in the “technical
determination” of his base offense level. Appellant’s Br. 18.
However, he contends that the district court should have used
its discretion to depart downward to a base offense level of 30,
based only on four kilograms of cocaine, to reflect the
“reality” of how much cocaine he actually trafficked.
Appellant’s Br. 18-19. The record does not support McCoy’s
argument that the third sale was a replacement, nor would the
district court have abused its discretion by basing the base
offense level calculation on seven kilograms even if it did
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constitute a replacement. See United States v. Young, 609 F.3d
348, 357 (4th Cir. 2010).
D.
Lastly, McCoy argues that his sentence is substantively
unreasonable because Amendment 782 to the Guidelines went into
effect shortly after he was sentenced. Amendment 782 is a
retroactive amendment that lowered the base offense levels
applicable to drug-related crimes. Post-sentencing Guidelines
amendments do not make a pre-amendment sentence unreasonable.
See United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008).
The district court correctly applied the Guidelines prevailing
at the time of sentencing. The proper avenue for a request for
application of Amendment 782 is a motion under 18 U.S.C.
§ 3582(c)(2), which would allow the district court to assess in
the first instance whether and to what extent the amendment may
affect McCoy’s sentence. Id. 2
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
2 Our holding as to the substantive reasonableness of
McCoy’s sentence is rendered without prejudice to McCoy’s right
to pursue such relief in the district court.
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